B.C. COURT OF APPEAL
2010
ANNUAL REPORT
Destrubé and Dave Roels Photography
TABLE OF CONTENTS
MEMBERS OF THE B.C. COURT OF APPEAL ................................................................... 2
STAFF OF THE B.C. COURT OF APPEAL .......................................................................... 4
SUPERIOR COURTS JUDICIARY STAFF ........................................................................... 5
REPORT OF THE HONOURABLE CHIEF JUSTICE FINCH .............................................. 6
100TH ANNIVERSARY OF THE B.C. COURT OF APPEAL ............................................. 12
REPORT OF THE REGISTRAR ........................................................................................... 22
COMMITTEE REPORTS ...................................................................................................... 24
PLANNING COMMITTEE ............................................................................................ 25
RULES COMMITTEE.................................................................................................... 27
COURT OF APPEAL TECHNOLOGY COMMITTEE ................................................ 31
EDUCATION COMMITTEE ......................................................................................... 33
JOINT COURTS TECHNOLOGY COMMITTEE ........................................................ 34
JUDICIAL ACCESS POLICY WORKING COMMITTEE .......................................... 35
LAW CLERK COMMITTEE.........................................................................................36
LIBRARY COMMITTEE ............................................................................................... 37
PRO BONO COMMITTEE ............................................................................................ 38
STATISTICS .......................................................................................................................... 40
SUPREME COURT OF CANADA ................................................................................ 41
B.C. COURT OF APPEAL ............................................................................................. 42
CIVIL STATISTICS 1999-2010* ................................................................................... 46
CRIMINAL STATISTICS 1999-2010* .......................................................................... 47
TOTAL APPEALS FILED AND DISPOSED 1999-2010** ......................................... 48
MEMBERS OF THE B.C. COURT OF APPEAL
Chief Justice
Chief Justice Lance S.G. Finch
May 5, 1983 (Supreme Court)
May 28, 1993 (Court of Appeal)
June 6, 2001 (Chief Justice of British Columbia)
Justices of the Court of Appeal
Madam Justice M. Anne Rowles
Madam Justice Carol M. Huddart
March 31, 1983 (County Court)
January 1, 1987 (Supreme Court)
October 11, 1991 (Court of Appeal)
January 1, 2008 (Supernumerary)
September 4, 1981 (County Court)
May 26, 1987 (Supreme Court)
March 19, 1996 (Court of Appeal)
June 30, 2003 (Supernumerary)
Madam Justice Jo-Ann E. Prowse
Mr. Justice John E. Hall
January 1, 1987 (County Court)
September 8, 1988 (Supreme Court)
June 24, 1992 (Court of Appeal)
March 1, 2008 (Supernumerary)
July 11, 1991 (Supreme Court)
December 19, 1996 (Court of Appeal)
August 1, 2006 (Supernumerary)
Madam Justice Catherine A. Ryan
May 26, 1987 (County Court)
July 1, 1990 (Supreme Court)
January 28, 1994 (Court of Appeal)
January 1, 2008 (Supernumerary)
Mr. Justice Ian T. Donald
June 30, 1989 (Supreme Court)
January 28, 1994 (Court of Appeal)
January 1, 2008 (Supernumerary)
Madam Justice Mary V. Newbury
July 9, 1991 (Supreme Court)
September 26, 1995 (Court of Appeal)
Mr. Justice Kenneth C. Mackenzie
May 6, 1992 (Supreme Court)
June 23, 1998 (Court of Appeal)
May 6, 2007 (Supernumerary)
Madam Justice Mary E. Saunders
December 23, 1991 (Supreme Court)
July 2, 1999 (Court of Appeal)
Mr. Justice Richard T. A. Low
March 31, 1977 (County Court)
July 1, 1990 (Supreme Court)
July 28, 2000 (Court of Appeal)
April 1, 2008 (Supernumerary)
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B.C. Court of Appeal
2010 Annual Report
Madam Justice Risa E. Levine
Madam Justice Kathryn E. Neilson
September 26, 1995 (Supreme Court)
February 6, 2001 (Court of Appeal)
July 1, 1999 (Supreme Court)
May 8, 2008 (Court of Appeal)
Mr. Justice Kenneth J. Smith
Mr. Justice Harvey M. Groberman
May 31, 1993 (Supreme Court)
October 1, 2001 (Court of Appeal)
May 28, 2008 (Supernumerary)
December 14, 2001 (Supreme Court)
May 8, 2008 (Court of Appeal)
Madam Justice Elizabeth A. Bennett
Mr. Justice Peter D. Lowry
October 11, 1991 (Supreme Court)
June 30, 2003 (Court of Appeal)
August 27, 1997 (Supreme Court)
May 14, 2009 (Court of Appeal)
Madam Justice Nicole J. Garson
Madam Justice Pamela A. Kirkpatrick
November 20, 1989 (Supreme Court
Master)
November 27, 1992 (Supreme Court)
June 2, 2005 (Court of Appeal)
Mr. Justice Edward C. Chiasson
March 21, 2001 (Supreme Court)
May 14, 2009 (Court of Appeal)
Mr. Justice Christopher E. Hinkson
March 2, 2007 (Supreme Court)
March 19, 2010 (Court of Appeal)
September 14, 2006 (Court of Appeal)
Mr. Justice S. David Frankel
March 2, 2007 (Supreme Court)
May 10, 2007 (Court of Appeal)
Mr. Justice David F. Tysoe
June 24, 1992 (Supreme Court)
June 22, 2007 (Court of Appeal)
Madam Justice Daphne M. Smith
December 19, 1996 (Supreme Court)
May 8, 2008 (Court of Appeal)
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2010 Annual Report
STAFF OF THE B.C. COURT OF APPEAL
Jennifer Jordan
Registrar
Gregory Pun
Law Officer
Maria Littlejohn
Associate/Deputy Registrar
Vicki Jang
Manager/Deputy Registrar
Alix Going
Executive Assistant to Chief Justice Finch
Law Clerks 2010-2011
Judicial Staff
Registry Staff
Kaity Cooper
Keith Evans
Ben Heller
Thea Hoogstraten
Emily Lapper
Danielle Rondeau
Fred Sheppard
Paul Todd
Erin Tolfo
Jennifer Vallance
Yichuan Wang
Micah Weintraub
Cathy Clough
Susan Devenish
Elise Du Mont
Joanne Heaton
Diana Huynh
Bonnie Marcaccini*
Susan McEvoy
Cherry Mills
Barbara Moss
Victoria Osborne-Hughes*
Jaclyn Burgoyne*
Shelly Ducharme**
Matt Dykeman
Steven Evans*
Torri Enderton
Shayna Irvine
Sue Lang
Barry Lai
Wendy MacKenzie*
Christina McKenzie**
Erica McCuaig
Merle Sandell*
Diane Schwab
Moira Syring*
*
* Victoria
** Kamloops
Special Assignment
Peter Millerd
Victoria
Ushers
Bill Deans
David O’Brien
Susan Brokenshire
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2010 Annual Report
SUPERIOR COURTS JUDICIARY STAFF
Judicial Administration
Frank Kraemer, Q.C.
Senior Counsel & Executive Director
Judicial Administration
Rani Amott
Director of Human Resources and Support Services (until
September, 2010)
Kory Bonhomme
Director of Human Resources and Support Services (starting
November 15, 2010)
Kevin Arens
Director of Information Technology and Finance
Tammy McCullough
Secretary to Senior Counsel & Executive Director
Cheryl Steele
Finance and Administration Clerk
Michelle Sam
Judicial Administration Clerk
Judges’ Library
Diane Lemieux
Library Technician
Sarah Preston
Website Administrator
Mary Falck
IT Services
Mark Hujanen, Service Delivery Manager
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2010 Annual Report
REPORT OF THE HONOURABLE CHIEF JUSTICE FINCH
General
The Court of Appeal is constituted by the
Court of Appeal Act, R.S.B.C. 1996, c. 77.
The Court of Appeal Act provides for a
Chief Justice and 14 other justices, as well
as for supernumerary justices. Thus, the
Court of Appeal may from time to time
have more than 15 judges. The Chief
Justice of British Columbia heads the
Court of Appeal.
Robert J. Bauman, as Chief Justice of the
Supreme Court on 9 September 2009.
The Court of Appeal is the highest court in
the province. It hears appeals from the
Supreme Court in civil and criminal
matters, from the Provincial Court on
some criminal matters, and reviews and
appeals from some administrative boards
and tribunals.
Justice Hinkson graduated from the
Faculty of Law at the University of British
Columbia in 1975, and was called to the
Bar of British Columbia in 1976. After
serving his articles with Guild Yule and
Company, he joined Harper Grey LLP
(formerly Harper, Grey, Easton & Co.)
where he practiced for more than 30 years.
The judges of the Court of Appeal are also
judges of the Yukon Court of Appeal. The
Yukon Court of Appeal sits at least one
week a year in Whitehorse.
Yukon
appeals are also heard in other British
Columbia court locations, such as
Vancouver.
The Court of Appeal hears appeals
regularly in Vancouver and Victoria, and
as needed from time to time in Kamloops,
Kelowna and Prince George. The Court of
Appeal has a Registrar who, in addition to
other administrative duties, hears matters
related to the settling of orders, books and
bills of costs.
The Court’s Complement
At the beginning of 2010 there was one
vacancy in the Court. It arose from the
appointment of the Honourable Mr. Justice
That vacancy was filled on 19 March 2010
with the appointment of the Honourable
Mr. Justice Christopher E. Hinkson to the
Court. He came to the Court after serving
three years as a judge on the Supreme
Court to which he had been appointed on
March 2007.
Justice Hinkson had an extensive litigation
practice in the areas of medical
negligence, personal injury, professional
negligence and administrative law. He
was president of the Vancouver Bar
Association in 1986/87. He was appointed
Queen’s Counsel in 1991. He was elected
a member of the American College of
Trial Lawyers in 1997.
Justice
Hinkson
made
significant
contributions to legal education in British
Columbia while at the bar, serving as an
adjunct professor at the Faculty of Law at
the University of British Columbia, and in
many other capacities. He took a number
of difficult cases on a pro bono basis, and
in addition represented many lawyers
before the Law Society of British
Columbia.
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2010 Annual Report
Justice Hinkson has three children - the
eldest practices law at Guild Yule LLP.
His oath taking in the Court of Appeal was
attended by his parents. His father, the
Honourable E. E. Hinkson passed away
later in 2010, and his career is described
later in this report.
All members of the Court of Appeal
welcomed the appointment of Justice
Hinkson as a learned, hard working, good
natured new colleague.
At the end of 2010, the Court had a full
complement of 15 full time members, and
nine supernumerary judges.
In Memoriam
In 2010 we lost three distinguished former
members of the Court of Appeal.
The Honourable Hugh Percival Legg
The
Honourable
Hugh Legg was a
member of both the
Supreme Court and
the Court of Appeal.
He passed away on
27 February 2010 at
the age of 88.
Hugh was born and
educated in England.
He joined the R.A.F. in 1941, at the age of
19, and came to Canada under the
Commonwealth Air Training Program.
He was commissioned as a pilot in 1942,
served as a flying instructor in Canada,
and was then sent to India flying agents
and supplies into Burma and French IndoChina. He left the service in 1945 with the
rank of squadron leader.
Hugh attended the University of British
Columbia after the war and obtained a
Bachelor of Arts degree in 1950 and
Bachelor of Laws degree in 1951. After
articles, and two years’ practice in a small
firm, Hugh joined Lawson Lundell
Lawson and McIntosh where he practiced
until his appointment to the Supreme
Court in September 1976.
During his time at the bar Hugh served as
a Bencher of the Law Society of British
Columbia from 1960 until June 1975 when
he was elected Treasurer, the highest
office of the Law Society was then known.
He was appointed Queen’s Counsel in
1972.
Hugh served as a Justice of the Supreme
Court from September 1976 until his
appointment to the Court of Appeal in
1989, at the same time as Mr. Justice
Martin Taylor and Mr. Justice George
Cumming. Hugh remained a member of
the Court until his retirement in February
1997.
During his time as a judge in both courts,
Hugh earned a reputation as a patient,
thoughtful, courteous jurist.
Counsel
always came away with the satisfaction of
knowing that their case had been heard
and understood.
Hugh’s reasons for
judgment reinforced counsel’s confidence
in his judicial powers.
Hugh is survived by Marie, his wife of 65
years, five children, seven grandchildren
and four great-grandchildren. He will be
remembered by all who knew him with
respect and affection.
The Honourable Ernest Edward (Ted)
Hinkson
The
Honourable
Ernest Edward (Ted)
Hinkson
passed
away peacefully on
6 September 2010 in
Vancouver at the
age of 84.
His
judicial
career
spanned 28 years,
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B.C. Court of Appeal
2010 Annual Report
coming to an end with his retirement from
the Court of Appeal in 1996. He is
remembered by all who knew him as a
kind, decent and generous man, who
devoted his life to his profession and his
family.
Ted was born in Regina, Saskatchewan,
graduated from high school there and then
attended the University of Toronto,
graduating with a history degree in 1949.
He returned to Regina for the summer, and
married his wife, Barbara Ferrier. The
newlyweds moved to Vancouver where
Ted attended law school at the University
of British Columbia. He graduated in
1952, in the same class as Madam Justice
Patricia Proudfoot, Madam Justice Mary
Southin, and Judge Dolores Holmes.
Ted articled with Davis Hossie & Lett and
then spent a further year working for Neil
Hossie. Ted then joined the law firm of
Guild Yule and Company. He had an
active civil litigation practice, much of
which was devoted to defending doctors,
dentists and druggists. He was meticulous
in the preparation of his cases, and
mastered the Rules of Court. He knew
what could be accomplished by the
intelligent use of the Rules, and the serious
problems that might befall one who was
careless of their content.
His former colleagues in the law firm
(many of whom are either former or active
judges) remember Ted as a team player.
He was balanced, temperate and objective.
He did everything that was expected of
him and more, and he did it all to the
highest professional standards. Those
younger lawyers in the firm, who were
fortunate enough to junior for Ted,
remember him as a patient and dedicated
mentor.
Ted’s first judicial appointment in 1968
was as “Local Judge of the Supreme
Court”, a position created to provide a
Supreme Court Chambers Judge before
there were Masters. Ted served as local
judge from 1968 to 1970, as a justice of
the Supreme Court from 1970 to 1977, and
as a member of the Court of Appeal from
1977 to 1996.
Ted is survived by his wife Barbara,
daughters Susan and Catherine, his son
Christopher (now Hinkson J.A.) and their
families.
The profession and the public have lost
one of our finest.
Ted was the
consummate professional and, as one
golfing partner has said – he was “a
gentleman’s gentleman”.
The Honourable
Macdonald
James
Allen
(Jim)
The
Honourable
Jim
Macdonald
passed away on 14
December 2010 at
the age of 93. He is
survived by his
wife Bobbie, three
children, four grand
-children, and his
brother Alex.
Jim was a judge in
British Columbia for 27 years. His first
appointment in 1965 was to the County
Court of Vancouver where he sat as the
first local judge of the Supreme Court (the
“Chambers Judge”, to be followed by
Judges Kirke Smith, Hinkson, Hutcheon
and Mackoff).
In 1966 he was appointed to the Supreme
Court where he served until his
appointment to the Court of Appeal in
1979. He remained a Justice of the Court
of Appeal until his retirement in 1992.
Jim came from a distinguished legal
family. His father, Malcolm Archibald
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B.C. Court of Appeal
2010 Annual Report
Macdonald, was a lawyer, appointed as
Attorney General in 1917. “M.A.” was a
Justice of the Court of Appeal from 1924
to 1940, and then Chief Justice of British
Columbia from 1940 to 1941.
Jim’s brother, Alex, was Attorney General
for British Columbia in the 1970s, and his
brother Malcolm, who predeceased Jim,
was a judge of the Provincial Court. Jim’s
daughter Sarah is a lawyer, practising with
the Provincial Ministry of the Attorney
General.
Jim was a distinguished jurist. He presided
over the longest trial in the history of
British Columbia. Morrison Knudsen et al
v. B.C. Hydro was a contractual dispute
over the construction of the powerhouse
on the Peace River, which took over 400
court days spread over five years.
Jim was a model of patience and his calm
and his quiet presence brought great
dignity to every court in which he
presided. He was very hardworking and
collegial, often volunteering for judicial
assignments when not scheduled to sit.
Jim had a quick and penetrating wit, and
his humour was often self-deprecating. In
the words of our former Chief Justice,
Allan McEachern, Jim was “a man who
brought so much dedication, good humour,
courtesy, kindness and common sense to
the law”.
The Work of the Court
In 2010 the Court delivered reserved
(written) judgments in 321 appeals and 75
chambers applications. In addition, the
Court pronounced judgment with oral
reasons in a further 157 appeals, and in the
vast majority of chambers applications.
All reserved judgments are given a neutral
citation and are posted on the Court’s
website. All oral judgments of a division
are transcribed, given a neutral citation,
and posted on the website. Oral chambers
judgments are transcribed and placed in
the Court file. They are available to
counsel or parties upon request, but are not
given a neutral citation or posted on the
website unless they are considered to be of
precedential value.
Most of the justices’ non-sitting time is
taken up either with the research for or
writing of reserved judgments or with
preparation for upcoming appeals. The
law clerks assist the justices in these tasks.
Responsibility for the writing of reserved
judgments is shared among those members
of the Court who have heard the appeals.
The Court continues to work towards full
compliance with the guideline set by the
Canadian
Judicial
Council
for
pronouncement of reserved judgments
within six months from the date of
hearing. Out of the total 88 reserved
criminal judgments rendered in 2010, 95%
were pronounced within the guideline. On
the civil side, of the 233 reserved
judgments delivered in 2010, 90% were
pronounced within the guideline. Of all
reserved judgments, both civil and
criminal, 93% were rendered within three
months or less of the hearing date.
Appeals to the Supreme Court of Canada
The statistics indicate that the Court is
essentially the court of last resort for
litigants in British Columbia. As set out
later in this Annual Report (see “Supreme
Court of Canada” in the statistics section
and the Registrar’s Report), in 2010 only
72 applications for leave to appeal were
filed in the Supreme Court of Canada from
judgments of the Court, and only 10
applications were granted.
Self-Represented Litigants
As noted in the Registrar’s Report, the
Court hears a significant number of
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B.C. Court of Appeal
2010 Annual Report
appeals
involving
self-represented
litigants. The number of civil filings for
self-represented litigants increased 6%
over last year. It is significant to note that
the number of civil and criminal appeals
heard where at least one party was selfrepresented also increased compared to
2009.
The Court again acknowledges the
significant contributions of the bar in
providing pro bono assistance to litigants
unable to afford legal services. The Court
is most grateful to all lawyers who have
provided free legal advice, advocacy, or
other assistance to litigants with arguable
cases, who lack necessary financial means
to engage in the appeal process.
Extra-Judicial Appointments & Activities
In addition to the justices’ workload in
hearing cases and issuing judgments,
every justice is involved in activities in the
legal profession, for the larger Canadian
judiciary, and for local communities, the
Province, and the country of Canada.
Justices also attend continuing education
seminars, for lawyers and for judges, in
Canada and abroad, as participants and
speakers. As a partial but representative
listing, in 2010 justices of the Court held
positions on various bodies such as:
-
-
National Centre for Business Law
Justice Education Society
Canadian Superior Courts Judges
Association – 2012 Quadrennial
Commission
Publication Ban Working Group
Judges’
Dinner
Committee
(Hutcheon Papers)
Canadian Judicial Council Jury
Instruction Committee
Canadian
Institute
for
the
Administration of Justice annual
conference
-
Winter Program for Newly
Appointed Federal Judges
International
Commission
of
Jurists
BC Courthouse Library Society
BC
Judicial
Appointments
Committee
International Centre for the Reform
of Criminal Law
Interpreters:
-
Southern Interior Forest Labour
Relations collective agreement
Coast Forest Labour Relations
Collective Agreement
Attended seminars either as speakers or
audience members:
-
-
-
Workshop in Nha Trang as part of
Judicial
Development
and
Grassroots Engagement Project for
Vietnam
CLE BC Appellate Advocacy
Seminar
National Judicial Institute Joint
Education Seminar for the Courts
of Appeal for Newfoundland,
Labrador and Prince Edward Island
Statute Law Society, London
England,
celebrating
first
anniversary of the UK Supreme
Court
Wrote and edited books and articles:
-
Annual Review of Insolvency Law
Family Law Sourcebook
CLE BC Administrative Law
Practice Manual
Assisted in:
-
Inns of Court Program for young
lawyers
UBC-UVic Moot
Membership in the following committees
or associations:
- Canadian Superior Courts Judges’
10
B.C. Court of Appeal
2010 Annual Report
-
Association
Judges
Technology
Committee of the
Judicial Council
Advisory
Canadian
Visits to the Court
In January, 2010 the Court received a
three-judge delegation from the Republic
of Korea and a six-party delegation from
the Republic of Guatemala. A Japanese
delegation attended in October 2010,
which included two Judges of the Supreme
Court of Japan as well as Consul Yoichi
Ikeda. The Court hosted two delegations
from the City of Tianjin of the People’s
Republic of China. In November, 2010
the Court received a six-judge delegation
representing the Tianjin People’s Court
and the Tianjin Higher People’s Court. In
December, 2010, the Court received an
18-judge delegation representing the
Tianjin People’s Court, the Tianjin First
and Second Intermediate People’s Court,
the Tianjin Higher People’s Court and the
Tianjin Maritime Court. The Court thanks
Greg Pun, Law Officer of the Court for his
help in organizing these visits.
Court meetings
After three years as the Law Officer to the
Court, Greg Pun has decided to return to
private practice. The Court would like to
thank Greg Pun for his dedication and hard
work on behalf of the Court, most
particularly for his superhuman efforts in
making the centennial celebrations such a
memorable experience. No detail was too
small for Greg to undertake and to solve.
The Court continues to receive the
assistance and support of its dedicated and
professional staff. Registrar Jennifer
Jordan, Associate/Deputy Registrar Maria
Littlejohn and Manager/Deputy Registrar
Vicki Jang provide the foundation for an
effective and efficient Court operation.
The Court is also served by a body of fine
personnel in the Court registry, in the
courtrooms and by our judicial assistants
and law clerks.
To all these persons who contribute to the
smooth operation of the Court, the judges
express their sincere gratitude.
And to all members of the Court I again
give my sincere thanks for their hard work
and collegiality.
At the spring meeting of the Court in April
2010, Mr. Justice Donald and the Law
Officer of the Supreme Court, Heidi
McBride, presented the new Publication
Ban Practice Manual to the Court.
At the fall meeting of the Court in October
2010, the Court heard from Professor
Gordon Rose from the SFU Psychology
Department. Professor Rose spoke on The
Ability of Jurors to Comprehend a Judge’s
Instructions.
On behalf of the Court, I express sincere
gratitude to all of these speakers for their
contributions to our continuing education.
Staff of the Court
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B.C. Court of Appeal
2010 Annual Report
100TH ANNIVERSARY OF THE BRITISH COLUMBIA COURT OF APPEAL
The centenary provided a unique
opportunity to make some public
expressions about the Court of Appeal,
presently and historically, legally and
socially. As the Chief Justice said in a
number of letters and speeches, the
centenary allowed us “to honour the many
men and women who, as judges, lawyers,
and staff, have helped to make the history
of the Court” and “to anticipate a
promising future while acknowledging a
remarkable past”.
In keeping with that mandate and goal, the
Court made its presence felt to many
people in many ways in many places.
There was a film, a book, a magazine, a
journal, a website, and numerous
television broadcasts and newspaper
articles, and especially the five special
sittings held in the province’s major cities
(Victoria, Vancouver, Prince George,
Kamloops, and Kelowna).
The centenary engaged many of the lawrelated entities in the province, including
the Law Society, the Canadian Bar
Association – BC Branch, local and
county bar associations, and the Justice
Education Society. It engaged numerous
law students at both the University of
British Columbia and University of
Victoria law schools, and both practising
and academic lawyers. It engaged many
members of the profession, from articled
students to junior and senior members of
the bar; and judges from all three British
Columbia courts and many other Canadian
courts. All were afforded several chances
in varied places to be involved at formal
and educational events, and at informal
and social events.
The centenary also brought the Court of
Appeal to the public at large, from high
schools students (via the visits in Victoria
and the Justice Education Society
Teacher’s Guide to the film mentioned
below) to university students (via the
Chief Justice’s remarks at Thompson
Rivers
University
in
Kamloops).
Members of the public were also able to
see the Court of Appeal by way of the
broadcasts on the Knowledge Network of
the film “Though the Heavens Fall: 100
Years of the British Columbia Court of
Appeal” and through the various news
reports of the five special sittings, as well
as by personal attendance at any of the
special sittings.
In addition to the many lawyers and others
who assisted with particular events (who
are listed at the end of this report),
acknowledgement must also be made to
the Court staff and sheriffs in all the
courthouses where special sittings took
place. The special sitting events involved
numerous registry staff, Court clerks,
judicial administrative assistants, Court
Services staff, and sheriffs. Without their
generous and prompt assistance, the events
would not have run as smoothly as they
did.
The assistance of Cathryn Wilson and
Kathryn Slemko in the planning,
organization and execution of the
Conference/Symposium events and Gala
dinner events is gratefully acknowledged.
What follows is a listing of the events and
the activities that took place to celebrate
the centenary.
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B.C. Court of Appeal
2010 Annual Report
Victoria Special Sitting and Dinner
The Victoria special sitting was the
inaugural event of the centennial year,
held 8 January 2010 (close to the actual
centennial date of 4 January 1910).
The Victoria special sitting was, by most
measures, the biggest special sitting event
of the year and in attendance second only
to the National Judicial Institute’s
Conference/Centenary Symposium and
gala dinner.
Attendees included 19 of the Court’s 23
justices, who came to Victoria for the
special sitting and dinner. The event is
captured by the photo appearing at the
beginning of this Annual Report.
On the morning of the special sitting,
several judges of the Court visited four
local high schools. Part of their visit
included a showing of an abbreviated
version of the film “Though the Heavens
Fall: 100 Years of the British Columbia
Court of Appeal”.
The special sitting took place in the
Maritime Museum in Bastion Square (the
one-time law court building), which still
maintains a heritage courtroom.
The
courtroom was filled to capacity with 75
people including Court judges, other local
Provincial Court and Supreme Court
judges (including Chief Justice Bauman),
local lawyers, and other guests.
That evening there was a celebratory
dinner hosted by the Lieutenant Governor
at Government House.
Vancouver Special Sitting and Reception
The Vancouver special sitting was held 26
March 2010.
The date was set to
accommodate the Olympics which took
place during February 2010. The true
anniversary of the first Vancouver sitting
of the Court could be arguably either 15
February 1910 (first actual sitting in 1910
accordingly to British Columbia Reports)
or 5 April 1910 (first scheduled sitting for
1910 pursuant to the 1907 statute).
Invitations were extended to provincial
and local politicians; current and retired
judges of the Provincial Court, Supreme
Court, and Court of Appeal; current and
life benchers of the Law Society; the
University of British Columbia Board of
Governors and the University of British
Columbia law school faculty; current and
former court staff; current and former law
students who assisted with research on the
history of the Court; senior members of
law-related groups such as the Law
Foundation of British Columbia, the
Canadian Bar Association – BC Branch,
the Advocate, Courthouse Libraries of
British Columbia, the Continuing Legal
Education Society of British Columbia,
the Justice Education Society of British
Columbia; and executive members of
other Lower Mainland bar associations.
Approximately 250 people attended the
special sitting, including local lawyers,
court staff, and members of the public.
The Vancouver special sitting was
followed by a reception at the Law Courts
Inn.
Symposium and Appellate Judges’
Conference
The annual National Judicial Institute
(NJI) Appellate Judges’ Conference was
held in Vancouver on 22 April 2010. This
was joined to a one-time Centenary
Symposium held 23-24 April 2010. The
Symposium was an added event because
of the Court’s centenary and was open to
judges and members of the legal
profession.
The Conference and Symposium took
place at the Morris J. Wosk Centre for
13
B.C. Court of Appeal
2010 Annual Report
Dialogue and had local, national, and
international guest speakers.
The
Conference and Symposium topics were as
follows:
April 22, 2010
International Law in Domestic
Law; Extradition; Aboriginal Law.
April 23, 2010
Appellate Procedure and the BC
Court of Appeal; Effect of
Disruptive
Technologies
and
Social Developments on the Legal
System; Evolving Challenges for
Courts
in
Democracies;
Confidence in the Justice System in
BC; Media Panel Discussion.
April 24, 2010
Neuroethics: Ethical and Legal
Challenges to the Emerging Era of
Personalized Medicine; Forensic
Pathology; DNA Evidence Issues
for Criminal Lawyers; Awareness
of DNA Testing’s Technical
Limitations for Criminal Lawyers;
The Human Rights Situation in
Iran Today; International Human
Rights, International Criminal
Law, and The International
Criminal Courts: Some Features of
an On-going Interplay; Human
Rights and Evidentiary Issues in
the
Context
of
Criminal
Proceedings; Canadian Courts as
World Courts: Promises and Perils
of Universal Jurisdiction.
Gala Dinner
In conjunction with the symposium, a gala
dinner was held 23 April 2010 at the
Westin Bayshore. Over 1,000 judges,
lawyers and others from all parts of British
Columbia and Canada attended. The
Master of Ceremonies for the dinner was
Glen Ridgway, Q.C. who, in recognition
of the national scope of attendees, spoke in
both French and English. The keynote
speaker was the Chief Justice of Canada,
Beverley McLachlin, and host Chief
Justice Lance Finch.
The Honourable Martin Taylor, Q.C. (a
retired Court of Appeal justice) performed
his work “The Lawyer’s A-Z”, a 17 minute
review (revue) of all manner of law,
mostly connected to the Court of Appeal
and to the Donoghue v. Stevenson case,
done to the tune of “The Maple Leaf
Forever”.
Also shown at this event was a seven
minute version of “Though the Heavens
Fall: 100 Years of the British Columbia
Court of Appeal”.
Prince George Special Sitting and Dinner
Although it was hoped to hold some
regular business during the sitting time, no
cases were brought before the Court.
Nonetheless, given the desire to use the
Centenary to promote the Court as a part
of the community, and the recent issuance
of the Practice Note on Interior Sittings,
the Court sent a division to Prince George
for 14 September 2010. The division
included Chief Justice Finch, Mr. Justice
Frankel and Madam Justice Neilson.
The local committee coordinated with the
Canadian Bar Association BC Branch to
hold
a
continuing
professional
development event in the morning to
coincide with the special sitting. The topic
was “Ethics in Action: Practice and
Community”. Thereafter, the division held
a lunch meeting with about 16 local
lawyers to discuss the Practice Note and
other matters of common interest.
Following the lunch meeting, the special
sitting was held in the Prince George
14
B.C. Court of Appeal
2010 Annual Report
courthouse. About 40 people attended the
special sitting.
A dinner was held in a local hotel,
attended by the division and about 40 local
lawyers. The mayor of Prince George, His
Worship Dan Rogers, also attended.
Kamloops Special Sitting and Dinner
Although it was hoped to hold some
regular business during the sitting time, no
cases were brought before the Court.
Nonetheless, given the desire to use the
Centenary to promote the Court as a part
of the community, and the recent issuance
of the Practice Note on Interior Sittings,
the Court sent a division to Kamloops on
18 October 2010. The division consisted
of Chief Justice Finch, Madam Justice
Saunders and Madam Justice Smith.
The judges held a lunch meeting with local
lawyers to discuss the Practice Note and
other matters of common interest. About
24 lawyers attended the lunch meeting.
Following the lunch meeting, the special
sitting was held in the Kamloops
courthouse. About 45 people attended the
special sitting, including local lawyers,
court staff, and members of the public.
The dinner was held in the old Kamloops
courthouse.
On 19 October 2010, Chief Justice Finch
gave a short speech at Thompson Rivers
University.
About 50 students from
several classes and disciplines attended the
lecture.
Kelowna Special Sitting and Dinner
In Kelowna, two cases were brought for
hearing on 1 November 2010.
The
division (consisting of Chief Justice Finch,
Madam Justice Huddart and Madam
Justice Garson) dealt with those cases and
the special sitting events of 2 November
2010.
The special sitting took place in the
Kelowna courthouse. About 35 people
attended the special sitting, including local
lawyers, court staff, and members of the
public.
The division then held a lunch meeting at
the Rotary Centre for the Arts with about
20 local lawyers to discuss the Practice
Note on Interior Sittings and other matters
of common interest.
After the lunch meeting, there was a
continuing professional development event
at the Harvest Golf Club, arranged by the
local committee in conjunction with the
Canadian
Bar
Association
British
Columbia Branch, followed by the
centenary dinner.
Justice Education
Network Film
and
Knowledge
Under the auspices of the Justice
Education Society and the Knowledge
Network, the film Though the Heavens
Fall: One Hundred Years of the BC Court
of Appeal, commemorating the Court of
Appeal’s centenary was prepared.
A near-final cut of the film was shown to
the current judges of the Court at the
Court’s semi-annual meeting in April 2009
to positive reviews. An advance screening
was held in the Vancouver courthouse
heritage courtroom on 2 October 2009 for
retired and current judges of the Court and
some other related guests.
A special screening for participants in the
film and for friends of the Justice
Education Society (JES) was held on 22
March 2010.
The film runs about 50 minutes. JES
prepared a teacher’s guide which includes
a DVD copy of the film.
The film aired on Knowledge Network
during 2010. The DVD was also shown at
15
B.C. Court of Appeal
2010 Annual Report
three Victoria-area high schools as part of
the Victoria centenary event on 8 January
2010.
Court History by Christopher Moore
Christopher Moore, a well-known writer
of Canadian history and the author of
several works of legal history, wrote The
British Columbia Court of Appeal -The
First Hundred Years, 1910-2010, which
was published in March 2010. Funding for
the project was provided by the Law
Foundation of British Columbia. There
was a book launch at the Art Gallery (the
old courthouse) on 22 April 2010, as part
of that weekend’s Symposium and gala
dinner events. The book examines the
various periods of the Court, describing
the judicial personalities as well as the
prominent cases that defined the period.
The book is the most comprehensive
picture of the Court ever assembled.
The Advocate Special Edition
The January 2010 issue of the Advocate,
dedicated to the Court’s centenary,
featured Registrar Jennifer Jordan on the
cover. A number of lawyers wrote short
articles on some of the leading appellate
counsel of the British Columbia bar over
the last century.
BC Studies
In September 2009, anticipating the
centenary, British Columbia Studies
published a special issue, No. 169
(Summer 2009), with articles by several
academics on aspects of the Court’s
jurisprudence in the last century.
UBC/UVIC Moot
The annual UBC/UVic moot took place on
6 February 2010 at the Vancouver
courthouse. In honour of the centenary,
the two moots were heard by six Court of
Appeal justices.
CLE Appellate Advocacy Seminar
On 1 October 2010, the Continuing Legal
Education Society of British Columbia
held its usual quadrennial seminar on
appellate practice and advocacy
The seminar covered both civil and
criminal appeals and included such topics
as Differences Between Trial and
Appellate Advocacy; Practice in the BC
Court of Appeal; Sentence Appeals;
Perspectives from the Court of Appeal
Registry; Factum Writing; Oral Advocacy;
and a live demonstration of a criminal
appeal.
Centenary Website
A website (http://www.bcca100.ca) was
set up in autumn 2009 to advertise the
April 2010 Conference/Symposium and
gala dinner, and to handle registration and
ticket sales for those events.
The website also had information about
the Court of Appeal and the centenary,
including photographs, links to some of
the other materials (e.g. Mr. Moore’s
book, the film Though the Heavens Fall:
One Hundred Years of the BC Court of
Appeal), press release about the other
centenary events, and links to things like
the news broadcasts about the special
sittings. Attempts are being made to
preserve the historical information
contained in the website.
Yukon Court of Appeal 50th Anniversary
Research
in
2009
serendipitously
uncovered the fact that the legislation
establishing a separate and distinct Yukon
Court of Appeal was first enacted in 1960,
making 2010 the 50th anniversary of the
Yukon Court of Appeal. Accordingly,
plans were taken up to celebrate that
event.
16
B.C. Court of Appeal
2010 Annual Report
During the regular May sitting a division of
the Court (Madam Justice Saunders,
Madam Justice Bennett and Madam Justice
Garson) also participated in a special
sitting and dinner, which was also attended
by Chief Justice Finch. On the morning of
17 May 2010, the Court held its special
sitting at 10:00 a.m., prior to the
commencement of regular business.
Justice Veale and Chief Judge Karen
Ruddy of the Territorial Court also sat on
the bench for the special sitting.
About 50 people attended the special
sitting, including local lawyers, Court staff,
and members of the public.
As is usual for the Yukon division sitting,
there was a bench and bar dinner that night.
The dinner was a special occasion because
the Court’s 50th anniversary coincided with
the 25th anniversary of the establishment of
the Yukon Law Society. In addition to a
speech given by Professor Ken Coates of
the University of Western Ontario (an
expert on local Yukon history), the Law
Society presented 25 year membership pins
to those members so deserving.
17
B.C. Court of Appeal
2010 Annual Report
Centenary Event Planners and Participants
Knowledge Network/
Justice Education Society Video
Megan Haldar, Director
Film Oversight Committee
Finch, CJBC
Levine, JA
The Honourable Martin Taylor, Q.C.
Rick Craig
Hamar Foster
David Hay
Sharon Bliss, Knowledge Network
Planning Committee Victoria
Kathryn Berge, Q.C.
Charlotte Salomon
Jim Legh (Chair)
Bruce Hallsor
Shelley Spring
Susen Johnsen (Rotto)
Dean Donna Greschner
Maritime Museum Executive Director
Greg Evans
Speakers at Victoria Special Sitting
Gary Lunn MP
Attorney General Michael de Jong, Q.C.
Glen Ridgway, Q.C.
James Bond
Charlotte Salomon
Victoria Dinner Speakers
Lt. Governor Stephen Point OBC
Chief Justice Robert Bauman
Madam Justice Jacqueline Dorgan
Prof. John McLaren
The Honourable Alan Macfarlane
Douglas Macfarlane
Trudi Brown, Q.C.
Glen Ridgway, Q.C.
Finch, CJBC
Judges Visiting Victoria High Schools
Finch, CJBC
Rowles, JA
Newbury, JA
Huddart, JA
Mackenzie, JA
Saunders, JA
Levine, JA
Chiasson, JA
Tysoe, JA
D. Smith, JA
Neilson, JA
UBC-UVIC Moot Judges
Donald, JA
Newbury, JA
Tysoe, JA
Neilson, JA
Groberman, JA
Garson, JA
Vancouver Special Sitting
Planning Committee
Robert Brun, Q.C.
Thelma O’Grady
Susan van der Flier
Derek Chapman (Chair)
Dean Mary-Anne Bobinski
Joelle Walker
Patrick Cleary
David Turner
Sandra Kovacs
Speakers at Vancouver Special Sitting
Lt. Governor Stephen Point OBC
Sandra Weafer
Attorney General Michael de Jong, Q.C.
Glen Ridgway, Q.C.
James Bond
Barbara Collins
Appellate Judges Conference/Symposium
David Wiseman (NJI)
Mary Ahearn (NJI)
Symposium Organizing Committee
Geoff Cowper, Q.C.
Dean Mary Anne Bobinski
George Copley, Q.C.
Donald, JA
Prof. Robin Elliot, Q.C.
18
B.C. Court of Appeal
2010 Annual Report
Finch, CJBC
Prof. Hamar Foster
Frankel, JA
Anna Fung, Q.C.
Kathy Grant
Dean Donna Greschner
John Hunter, Q.C.
Miriam Maisonville, Q.C.
Neilson, JA
Newbury, JA
Saunders, JA
D. Smith, JA
Marvin Storrow, Q.C.
Symposium Speakers
Lt. Governor Stephen Point OBC
Prof. Stephen Toope
Prof. Jutta Brunee
Gib van Ert
Mr. Justice David Watt
Judge Patrick Healy
John Hunter, Q.C.
Prof. John Borrows
Jean Teillet
Prof. Hamar Foster
Prof. Richard Susskind
Prof. Judith Resnik
Prof. Kent Roach
Neil Boyd
The Honourable Patrick LeSage
Kirk Makin
Peter McKnight
Mary-Lynn Young
Dr. Judith Iles
Mr. Justice Stephen Goudge
Alan Gold
Dr. Don Riley
Shirin Ebadi
Prof. Peter Burns
Associate Chief Justice Dennis O’Connor
Prof. Rene Provost
Vancouver Gala Dinner
Dinner Committee
Marvin Storrow, Q.C.
Daniel Bennett
Dean Mary Anne Bobinski
The Honourable Donald Brenner, Q.C.
Derek Brindle, Q.C.
Russ Chamberlain, Q.C.
Murray Clemens, Q.C.
Geoff Cowper, Q.C.
Ian Donaldson, Q.C.
Finch, CJBC
Prof. Hamar Foster
Anna Fung, Q.C.
Gerald Ghikas, Q.C.
John Gordon, Q.C.
Wendy Harris, Q.C.
John Hunter, Q.C.
William Kaplan, Q.C.
Robin McFee, Q.C.
Miriam Maisonville, Q.C.
Sharon Matthews
Karen Nordlinger, Q.C.
The Honourable Wally Oppal, Q.C.
Robert Prior, Q.C.
Donald Sorochan, Q.C.
Mitchell Taylor, Q.C.
The Honourable Allan Thackray, Q.C.
Donald Yule, Q.C.
Dinner Assistants
Toni Armanno
Lauren Blake-Borrell
Kari Schroeder
Matthew Scott
Gloria Ng
D.J. Larkin
Isabel Henkelman
Bob Kucheran
Brenda Osmond
Rory McGillis
Mark Myhre
Kerry Birch
19
B.C. Court of Appeal
2010 Annual Report
Dinner Speakers
Glen Ridgway, Q.C.
Chief Justice Beverley McLachlin
Finch, CJBC
Chief Leah George Wilson
Anna Fung, Q.C.
Newbury, JA
Michelle Pockey
The Honourable Martin Taylor, Q.C.
Book Launch and Reception
Christopher Moore
James Bond
Andrew Wilkinson, Q.C.
Claire Wilson
Greg Sexton
Heather Skappak
Whitehorse Sitting
Planning Committee
Mr. Justice Ronald Veale
Debra Fendrick
Tracy McPhee
Melissa Atkinson
Speakers Whitehorse Sitting
Mr. Justice Ronald Veale
The Honourable Geraldine van Bibber
Chief Brenda Sam
John Phelps
The Honourable Marian Horne
Susan Dennehy
Rod Snow
Whitehorse Dinner Speaker
Prof. Ken Coates
Prince George Planning Committee
Ronald Tindale
Greg Petrisor
Benjamin Levine
Kerri Fisher (Chair)
Grant Zimmerman
Lorne Dunn
Patricia Schmit, Q.C.
Prince George Professional Development
Event
Jennifer Weber
Glen Ridgway, Q.C.
Stephen McPhee
Prince George Special Sitting Speakers
Bruce Kaun
Attorney General Michael de Jong, Q.C.
Glen Ridgway, Q.C.
Stephen McPhee
Oliver Hui
Prince George Dinner Speakers
Glen Ridgway, Q.C.
Stephen McPhee
His Worship Mayor Rogers
Finch, CJBC
Kamloops Special Sitting Planning
Committee
Ken Walker
David Dundee
Sarah Firestone (Chair)
Leyna Roenspies
Michelle Stanford
Tara Decker
Tamara McKinnon
Butch Bagabuyo
Kamloops Special Sitting Speakers
Rex Renkema
Lorne Fisher
Glen Ridgway, Q.C.
Stephen McPhee
Sarah Firestone
Organizers Thompson River
University Visit
Karen Strothers Dawson
University Vice-President Richard
Barnsley
Dean Christopher Axworthy, Q.C.
20
B.C. Court of Appeal
2010 Annual Report
Kelowna Special Sitting
Kelowna Planning Committee
Meg Shaw, Q.C.
Tom Fellhauer
Cathie Heinrichs (Co-chair)
Grant Hardwick (Co-chair)
Neville McDougall
Sandra Hakanson
Taryn Moore
Norman Yates
Kelowna Special Sitting Speakers
Clarke Burnett
Colin Forsyth
Glen Ridgway, Q.C.
Stephen McPhee
Heidi Taylor
Deborah Pearce
CLE Appellate Advocacy Program
Planning Committee
Raymond Lee
Ursula Botz
Holly Brinton
Patrick Foy, Q.C.
Gil McKinnon, Q.C.
Faculty for CLE Appellate Advocacy
Finch, CJBC
Hall, JA
K. Smith, JA
Frankel, JA
Garson, JA
Susan Brown
Mr. Justice William Ehrcke
Gregory Fitch, Q.C.
Angus Gunn
John Hunter, Q.C.
Registrar Jennifer Jordan
Deputy Registrar Maria Littlejohn
Robert Mulligan
Gregory Pun
Paul Riley
Centenary Website
Cathryn Wilson
Doug Jasinski (Principal, Skunkworks
Creative Group)
21
B.C. Court of Appeal
2010 Annual Report
REPORT OF THE REGISTRAR
The Court’s Workload
There were 962 filings of new appeals in
2010, a decrease from the 1089 new
filings in 2009. The decrease relates to a
decrease in both civil and criminal filings.
Statistics for criminal and civil case loads
for 2010, with comparable numbers from
1999 to the present, are attached as
appendices to this report.
Sittings of the Court
Due to the Olympic festivities around the
Vancouver courthouse in 2010, and
because of the disruption to traffic and the
increase in noise, the Court decided not to
sit during the three weeks of the
celebrations. However, the sitting time
was made up by the Court sitting more
third divisions the remainder of the year.
In 2010, division one sat for 36 weeks,
division two sat for 36 weeks and division
three sat for 19 weeks. The Court also sat
two divisions in the summer months. In
addition, the Court sat for seven weeks in
Victoria and one week in the Yukon
Territory. The Court sat a total of 101
divisions in 2010, equalling the number of
divisions sat in 2009.
Self-Represented Litigants
In 2010, out of 705 civil appeals filed and
applications for leave to appeal filed, 195
cases (28%) involved a litigant who was
not represented by counsel. There were
fewer judgments rendered in civil appeals
involving self-represented litigants. Of
289 civil cases disposed of in 2010, 61
(21%) involved at least one in-person
litigant. This is a 6% increase over 2009 of
appeals heard involving self-represented
litigants.
On the criminal side, there were 257
appeals or applications for leave to appeal
filed. Of that total, 33 (13%) were appeals
or applications by self-represented
litigants. Of the 189 criminal appeals
heard in 2010, 17 (9%) appeals involved
self-represented litigants.
Media Lock-Up for Release of
R. v. Henry Judgment
There was a successful media and counsel
lock-up prior to the release of the R. v.
Henry judgment on 27 October 2010.
Approximately 18 accredited media
showed up for the briefing by the Law
Officer, Greg Pun. These lock-ups are
useful in giving the journalists a chance to
review the Court judgment in detail, to ask
any questions of the Law Officer and to
prepare a more comprehensive and
accurate report for release. Lock-ups also
assist counsel who have a chance to digest
the judgment before facing questions from
the media.
Registry and Staff
The Court of Appeal is fortunate to have
such dedicated staff who serve the public
and the judges with enthusiasm and
dedication. In times of budget restraint and
staff shortages, it is a credit to the staff
that the level of services remains high.
In 2010 we said good-bye to Matt
Dykeman, who left clerking in the Court
of Appeal to pursue a more senior position
with Court Services. We welcomed Erica
McCuaig as a court clerk, who comes to us
with extensive experience clerking at the
22
B.C. Court of Appeal
2010 Annual Report
Provincial Court.
Barry Lai is also
welcomed as a new court clerk. He comes
to us from the pool of agents who
regularly visit our registry.
WebCATS
WebCATS, the web-based Court of
Appeal tracking system is the Court’s
electronic file management system.
WebCATS has been available to the
public through Court Services Online
since 2005, allowing the public to search
civil and criminal indices for free and to
view recent individual files for a fee.
displayed the hearings according to the file
number.
WebCATS has always had the ability to
capture the amount of time a court hearing
takes. An addition to the chambers screen
now makes this collection of time
available for chambers hearings as well.
Plans for 2011 include the addition of efiling. To deal with some documents
which will not be e-filed at first, the staff
will be uploading documents using a
scanner. The current plan is to scan all
initiating documents and orders.
Upgrades to WebCATS in 2010 included
an amendment to the oral hearings. Judges
have been giving an increasing number of
oral judgments on dates other than the
hearing date. This involved a change to the
results screen so that oral judgments could
be captured in a fashion similar to the
reserve judgments.
The Court has also approved the list of
documents available through Court
Services Online. Documents on family
files will not be viewable. As well, all
affidavits will not be viewable. These are
the same rules that are followed in the
Supreme Court.
A large change to the information
available to the public is the ability to
view available hearing dates. The Court
now has information on the Court of
Appeal website which shows available
court time for the calendar year. Counsel
and parties are asked to check dates on the
website before they contact the scheduler
to schedule a Court matter. The list is
found at both the “Scheduling” and the
“Hearing List” tabs on the website.
In 2010, the Registrar conducted 97
hearings out of a total of 134 scheduled
hearings. Of those 97 hearings, 34 were
for the assessment of costs, 45 were to
settle orders, and 12 were hearings
combining the settling of the order with
the assessment of costs.
For the Criminal Pilot Project (see the
Rules Committee Report), a new initiating
letter was created that automatically
populated all of the date fields in the letter.
Since all dates are calculated in relation to
the filing date, this was a useful letter for
staff.
Registrar’s Hearings
In July 2010 the Court of Appeal Rules
were amended giving the Registrar more
jurisdiction to settle appeal records, appeal
books and transcripts. As a result, there
were also six hearings in 2010 dealing
with the settlement of books.
Another small change was to reorder all of
the scheduled hearings in WebCATS so
that all the matters in one division were
listed together. Prior to this the list
23
B.C. Court of Appeal
2010 Annual Report
COMMITTEE REPORTS
24
B.C. Court of Appeal
2010 Annual Report
PLANNING COMMITTEE
Members:
The Honourable Chief Justice Finch (Chair from Sept 2010)
The Honourable Madam Justice Saunders
The Honourable Mr. Justice Lowry (Chair to September 2010)
The Honourable Mr. Justice Chiasson
The Honourable Madam Justice Neilson
The Honourable Mr. Justice Tysoe (Sept 2010)
The Honourable Mr. Justice Groberman (Sept 2010)
Frank Kraemer Q. C., Senior Counsel & Executive Director, Judicial Administration
Jennifer Jordan, Registrar
Gregory Pun, Law Officer
The Planning Committee meets several
times throughout the year to consider
matters of general importance to the
operation of the Court. The Committee
acts as the Court’s executive committee.
New policies, initiatives, and changes in
the administration of the Court are
considered by the Committee.
The Committee reports to the full Court at
the semi-annual meetings to obtain
approval where required.
These are some of the matters considered
during 2010:
Self-represented litigants
The number of self-represented litigants
appearing before the Court is seen as a
growing concern. The Committee has
asked the Pro Bono Committee to
endeavour to identify the problems which
now arise and to develop proposals to
address
them
for
the
Court’s
consideration.
The greater use of technology
The Committee considers it is incumbent
on the Court to explore how technology
that is now available can be used to
improve all aspects of the appeal process
and reduce the volume of paper that it
consumes. The task rests largely with the
Court’s Technology Committee which has
been asked in particular to consider the use
of electronic books (Appeal Records,
Appeal Books and Authorities) as well as
the development of hyperlinked factums.
Chambers Practice
A review of chambers practice has revealed
issues about incomplete materials, late
materials, and late adjournments. To some
extent, the amendments to the Court of
Appeal Rules in 2010 which provide for
more time for the filing of motion books and
materials may alleviate some of these
problems, at least in relation to leave
applications. However, there is also concern
about the length of chambers hearings and
25
B.C. Court of Appeal
2010 Annual Report
whether more accurate estimates of time
should be required and enforced.
Registry Practice
With the assistance of Court Services
personnel, the Court registry staff are
undertaking the preparation of a
comprehensive manual to assist them in
processing documents. Members of the
Planning Committee will perform an
advisory role on this project.
Kelowna, Kamloops and Prince George
Sittings
Prior to November, 2010 the Court had
not travelled to Kamloops or Kelowna
since 2006 to hear an appeal. It has been
even longer since the Court travelled to
Prince George. Counsel have indicated
that that there is still interest in the Court
travelling to the Okanagan. The
Committee has proposed that counsel
contact the Chief Justice when they want
a division to travel to their city. If there is
sufficient public interest or importance to
an appeal, the Chief Justice will direct that
a division be scheduled to sit there. The
request must be made at least 60 days
before the anticipated hearing.
Increased Sittings in the Yukon
The Yukon has asked for more sitting
time. Another division will be scheduled
to visit the Yukon in November 2011, in
addition to the May 2011 division.
Whitehorse is the default sitting venue for
hearing all Yukon appeals. If counsel
wish to have a matter heard in Vancouver,
the request should be made to the Chief
Justice to indicate the reasons why the
matter should be heard in Vancouver.
Acknowledgements
As always, the Committee has been
greatly assisted throughout the year by our
Senior Counsel and Executive Director,
Frank Kraemer, Q.C., our Registrar,
Jennifer Jordan, and Law Officer, Greg
Pun.
Release of Reserve Judgments by e-mail
Reserve judgments have been released by
e-mail since the beginning of September,
2010. Counsel send a request to the Court
Reserve
Judgment
box
at
[email protected] and the judgment is
e-mailed at the same time as it is released
in chambers. Where a party asks that the
e-mail be sent to multiple people, the
requesting party is now asked to forward
to the judgment office an e-mail with all
of the participants copied.
26
B.C. Court of Appeal
2010 Annual Report
RULES COMMITTEE
___________________________________________________________________________
Members:
The Honourable Chief Justice Finch (ex officio)
The Honourable Madam Justice Prowse (Chair from Sept 2010)
The Honourable Madam Justice Newbury (Chair to Sept 2010)
The Honourable Mr. Justice Lowry (to Sept 2010)
The Honourable Mr. Justice Frankel
The Honourable Madam Justice Garson
The Honourable Madam Justice Bennett (Sept 2010)
The Honourable Mr. Justice Hinkson (Sept 2010)
Jennifer Jordan, Registrar
Gregory Pun, Law Officer
________________________________________________________________________
The Court of Appeal Rules Committee
meets regularly throughout the year to
discuss proposals by the judges of the
Court, the Registrar and lawyers, for
amendments to the Court of Appeal Act
and the civil and criminal Rules. The
Committee is also responsible for
amendments to the Yukon Court of Appeal
Act and Rules. The Committee reports to
the full Court on recommendations for
amendments. It consults with members of
the bar when there is a proposal that
significantly changes the practice and
procedure of the Court.
Criminal Appeal Rules
Criminal Pilot Project
In an effort to reduce unacceptable delays
in the prosecution of criminal conviction
and acquittal appeals, the Committee
approved a pilot project, commencing on 7
September 2010, where all conviction and
acquittal appeals are subject to a new
timeline for the filing of documents in the
Court of Appeal. The intent is to have
most appeals completed within one year of
commencement. The Practice Directive for
the pilot project was produced after
meetings with Crown counsel, members of
the defence bar and with the Legal
Services Society. Registry staff are to
monitor the filing deadlines and there is a
compliance
hearing
automatically
scheduled at the one year anniversary. If
the timelines prove acceptable, they will
be incorporated into the Criminal Appeal
Rules. Specifics of the pilot project are as
follows:
1. Counsel would have to file
confirmation that the transcript and
appeal books have been ordered;
2. Transcripts and appeal books
should be filed by a certain date at
which time counsel will set the
hearing date;
3. The date for the filing of the
appellant’s factum is calculated
from the date the notice of appeal
is filed;
4. A “compliance date” hearing is
also automatically scheduled for
chambers in case the appellant’s
factum is not filed by the
scheduled date.
5. The respondent’s factum would be
filed in relation to the hearing date
27
B.C. Court of Appeal
2010 Annual Report
(within four to six weeks of the
hearing date).
6. There would be exceptions to this
schedule: counsel could agree to
abbreviated time limits; in person
appellants might not be required to
follow the timeline; complex
appeals may need to follow another
schedule – by agreement and
approval of a chambers judge.
Provision may be made for case
management in these instances.
7. To provide immediate feedback for
the purpose of making necessary
adjustments
as
the
project
proceeds, a brief questionnaire will
be prepared for counsel to
complete after the hearing.
Rule 13(3) applications may be useful in
effectively bringing the timelines in the
pilot project into effect on appeals
commenced before 7 September 2010.
Legal Services Society reporting letter
The Practice Directive on applications for
the appointment of legal counsel pursuant
to s. 684 of the Criminal Code has been
amended. The change is that the letter of
authority that the applicant sends to the
Legal Services Society, if legal aid is
refused, asks for the Society to send a
letter to the registry indicating only that
legal aid was refused, whether the refusal
was based on financial circumstances, the
grounds of appeal that were considered on
the application and that the documents
reviewed be forwarded to the Court of
Appeal.
Criminal Forfeiture Appeals
Forfeiture appeals have been treated to
date like sentence appeals. However, they
are often more complex and involve
transcripts and factums. The Committee
agrees that forfeiture appeals should be
treated like conviction appeals with
transcripts and factums. Unlike other
sentence appeals, counsel will be
responsible for ordering transcripts.
Civil Appeal Rules
Civil Appeal Rule Amendments
The Civil Rule amendments were
proclaimed on 1 July 2010. The
amendments include:
1. Rule 1 was amended to define
“business day”
2. Rule 7(2) was amended and
increases the appellant’s time for
filing of the Notice of Motion for
leave to appeal from 5 days to 10
business days.
3. Rule 8 was likewise amended to
increase the respondent’s time for
filing a reply book from 1 day to 5
business days.
4. Rule 9 (4) was amended to provide
for a time limit of “5 business
days” instead of 5 days for stay of
proceedings or stay of execution.
5. Rule 9(5) was added to provide for
a reply to a stay and setting 2
business days for the filing of the
reply motion book.
6. Rules 23 to 25 relating to factums
on cross appeal were replaced with
new rules 23 and 24. The new rules
provide for a reply factum on a
cross appeal and the new names for
the factums (also followed in Form
11). In addition the rules set the
page limits for the various factums:
a. 40 pages for “respondent’s
factum on appeal” and
“respondent’s cross appeal
factum”.
28
B.C. Court of Appeal
2010 Annual Report
b. 30 pages for “appellants
cross appeal factum” and 5
pages for “appellants reply
factum”
7. The settlement of appeal books and
appeal records was added to the
rules, and consolidated with the
section
with
settlement
of
transcripts. The form for the
registrar’s
appointment
has
likewise been amended.
8. Rule 54.1 was added as the
Electronic Filing Rule.
9. The Court forms have been
amended to show the Hornby
Street address for the Court.
10. Form 9 (Appeal Record) was
amended to ask that a copy of the
original signed reasons for
judgment be included.
11. Form 12 was amended to have
affidavits listed in the order that
they were sworn.
12. Form 12 was also amended to
allow an appeal book to be printed
double-sided with the page
numbers on the upper outside
corner of the page.
13. The “Fees Payable to the Crown”
which were originally part of the
Supreme Court Schedule 1
Appendix
C
have
become
Appendix C Schedule 1 of the
Court of Appeal Rules. The fees
have also changed – the numbers
are rounded. They are subject to a
cost of living adjustment every two
years.
Orders on Oral Reasons for Judgment
There is some confusion arising in the
situation where there is an oral hearing and
the reasons for judgment are given orally
on another date. Litigants are filing orders
in the reserve judgment form and the
registry has to return the orders for
correction. The proposed correction is that
the oral reasons for judgment form will
include the phrase “and on oral reasons for
judgment being given today”. Amended
forms will be proposed for the 2011
legislative amendments.
Refusal of extension of time
The Court has issued a Practice Directive
to allow orders to be filed which dispose
of an appeal where an extension of time to
file a document has been refused. The
Practice Directive reads:
Result When Extension of Time
Refused
When an application to extend the
time to file an appeal record,
transcript,
appeal
book
or
appellant’s factum has been
refused by a justice in chambers,
the order shall include a direction
that the appeal is dismissed as
abandoned pursuant to s. 10(2)(e)
of the Court of Appeal Act unless a
justice otherwise orders. If there is
a reason why the appeal should not
be dismissed as abandoned,
counsel should raise the issue at
the hearing.
The order should indicate any
disposition as to costs, either as
made by the justice or as otherwise
permitted by law.
14. The major change to the fees is that
there is no hearing fee charged for
a ½ day appeal.
29
B.C. Court of Appeal
2010 Annual Report
Leave to Appeal
Some issues have arisen with the current
process of applying for directions as well
as for leave to appeal. A subcommittee of
the Rules Committee has been formed to
“rationalize, simplify and resolve” the
leave to appeal problems.
Chambers practice
Some judges of the Court met with
counsel who frequently appear in Court
chambers to discuss possible reform to the
civil chambers practice. The meeting
resulted in the following initiatives:

Amend the Rules to provide for the
filing of responsive materials on
chambers applications;

Prepare a Practice Directive to permit
the filing of written argument where
not specifically required by the Rules;

Encourage counsel to schedule
chambers matters at the beginning of
the week instead of on Thursdays and
Fridays, when the lists are usually
long; and

Amend Form 6 to indicate whether an
application is contested.
The expectation is that issues with
adjournments should almost disappear if
there is an opportunity to respond to
general applications.
Acknowledgements
As always, the Committee has been
greatly assisted throughout the year by our
Registrar, Jennifer Jordan, and Law
Officer, Greg Pun.
30
B.C. Court of Appeal
2010 Annual Report
COURT OF APPEAL TECHNOLOGY COMMITTEE
Members:
The Honourable Chief Justice Finch (ex officio)
The Honourable Madam Justice Saunders
The Honourable Madam Justice Levine (chair)
The Honourable Mr. Justice Chiasson
The Honourable Mr. Justice Tysoe
The Honourable Mr. Justice Groberman
Frank Kraemer Q. C., Senior Counsel & Executive Director, Judicial Administration
Jennifer Jordan, Registrar
Gregory Pun, Law Officer
The Court of Appeal Technology
Committee was created to deal with issues
arising from the use of computers in the
courtroom. The Committee’s concerns
relate to the effect on the Court’s process
from the presence and use of computers in
the courtroom. There are two aspects to
the Committee’s inquiries:
electronic
appeals, and the use of laptops in the
courtroom by counsel and judges.
The Committee is addressing both
physical issues, such as the placement of
computers and monitors in the courtroom,
and more fundamental questions about the
changing nature of appellate litigation.
William v. HMTQ Appeals
The judges hearing these three appeals in
November, 2010 were interested in
collecting as much of the material as
possible in electronic format. The
voluminous transcript was electronic, as
were the trial exhibits and authorities. The
factums of all the parties were filed as
electronic hyperlinked factums as well as
in paper format. In the end, because of the
voluminous material, the parties also all
filed condensed books at the beginning of
the hearing.
The screens were set up in the courtroom
and the judges made various uses of their
laptops, from taking notes to annotating
documents.
Counsel preferred the traditional method
of presenting an appeal and because of the
complexity of the material, counsel were
responsible for the display on the screens
in the courtroom; the screens, however,
were not used very much.
The Court was able to reduce a significant
amount of filed paper for these appeals.
The condensed books used by counsel for
the hearings were a miniscule fraction of
the record. By eliminating the filing of the
usual copies of appeal books and
transcript, counsel were able to focus on
those materials they needed for the
hearing, and reproduce only those in hard
copy. While these were somewhat unique
circumstances, valuable lessons were
learned and, with the proper protocols, the
Court should be able to achieve similarly
31
B.C. Court of Appeal
2010 Annual Report
favourable results in terms of reducing the
flow of paper.
In the end, the main lesson learned is that
strict standards for the preparation of
documents must be set for counsel,
particularly around the authorities. It is
important that the references be to
authorities that appear in the same
reporter. Also, standards for hyperlinked
factums are essential.
These appeals also had added complexity
because each of the three parties was an
appellant. Collecting and storing the
material presented a unique challenge and
emphasized the need for consistent naming
of documents.
Electronic Appeal Documents
The Committee is involved in looking at
the various formats of documents. In
addition, work has to be done in setting an
infrastructure for the collection, use and
preservation of electronic material.
Currently the Act and Rules all refer to
paper copies of documents. The legislation
has to be changed to allow for the filing of
electronic copies only. This leads to the
need for archiving and retrieval standards.
The Committee is currently working with
Court Services to identify and develop an
infrastructure for an electronic Court.
The aim of the Committee is to allow
judges to continue to work the way they
want but using paper on demand instead of
the current system of collecting everything
in paper.
An essential component of this work is to
also meet with counsel, transcription
companies, and others involved in the
preparation of documents for the Court to
discuss the implications of moving to an
electronic world.
32
B.C. Court of Appeal
2010 Annual Report
EDUCATION COMMITTEE
Members:
The Honourable Mr. Justice Donald
The Honourable Madam Justice Newbury
The Honourable Mr. Justice Frankel
The Honourable Mr. Justice Groberman
The Education Committee presents
programs for the judges at monthly
sessions known as “Law at Lunch” and at
the spring and fall meetings of the Court.
Law at Lunch is an informal lunch
meeting of the judges, held about once a
month, at which a speaker presents a topic
that relates generally to the work of judges
and its impact on others. Programs of
greater length are presented at the semiannual meetings.
Law at Lunch speakers included
Mr. James Tate, of the B.C. Bar, on the
“Lawyers’ Rights Watch” program;
Justice Garson, on the new Supreme Court
Rules; Justice Slade, on the Special Claims
Tribunal; and a panel consisting of Justice
Ryan, Justice Saunders and Justice
Chiasson, on civility in judgments and
related issues.
At the spring meeting of the Court in
April, Heidi McBride, Supreme Court Law
Officer, presented the new Publication
Ban Manual.
At the fall meeting of the Court in
October, Prof. Gordon Rose, of the Simon
Fraser University Psychology Department,
spoke on “the Ability of Jurors to
Comprehend a Judge’s Instructions”.
The Committee played an active role in
the Court’s centenary celebrations, in
particular, the 2010 National Judicial
Institute Appellate Seminar and the
Centenary Symposium which immediately
followed.
Judges of the Court are given the
opportunity
to
attend
educational
programs offered by various organizations,
including the National Judicial Institute,
the
Canadian
Institute
for
the
Administration of Justice, the Federation
of Law Societies, the Continuing Legal
Education Society of British Columbia,
the Canadian Bar Association, and
university law schools.
All of these educational activities are
designed to assist judges to remain current
in the understanding of substantive and
procedural legal developments, as well as
in some of the broader issues that form the
background to judicial work.
33
B.C. Court of Appeal
2010 Annual Report
JOINT COURTS TECHNOLOGY COMMITTEE
Members:
The Honourable Mr. Justice Masuhara* (Chair)
The Honourable Madam Justice Levine
The Honourable Mr. Justice Tysoe
The Honourable Madam Justice Boyd*
The Honourable Mr. Justice Myers*
The Honourable Mr. Justice Rogers*
His Honour Master Baker*
Frank Kraemer Q. C., Senior Counsel & Executive Director, Judicial Administration
Jennifer Jordan, Registrar
Kevin Arens, Manager Information Technology and Finance
Cindy Friesen*, Manager, Trial Coordination
Heidi McBride*, Law Officer (Secretary)
(*B.C. Supreme Court)
In 2010, the Committee reviewed the
performance issue of laptops which
contained encryption software, started a
tablet computer project and reviewed
various security matters. The Committee
was also involved in reviewing the new
features of the courts website which
include a site search and an RSS feed.
These two additions are the result of
feedback from users of the website. As
well, while the judgment database has
always been blocked from Google
indexing to protect the privacy of the
litigants, the rest of the site is available
and is now indexed by Google and other
search engines.
In addition, the Committee began to work
on developing policies around the
acquisition of new software applications
and hardware for the members of the
courts. To this end terms of reference were
prepared and reviewed for the committee.
The Committee met with members of the
bar in September to gather information on
how the bar is utilizing information
technology, what the drivers are, and the
application of technology in the courts.
The meeting was well attended and the
feedback from the profession was very
useful. The Committee continues to
evaluate the application of information
technology in its processes.
The Committee notes that some electronic
proceedings were planned for 2010 as well
as 2011. Results from which will inform
the Committee as to the direction to
proceed in setting standards. Another
significant issue identified was the
infrastructure of the courts and the lack of
technology-friendly courtrooms. Funds
will have to be allocated to improve these
courtrooms in order to accomplish these
goals. The Committee and judges of the
courts are generally becoming more
engaged in the process of introducing
technologies into the registries as well as
the courtrooms. Both courts have
representation on the Integrated Electronic
Courts project of the Ministry of the
Attorney General. The project seeks to
improve its work processes through
electronic filings as well as electronic
processing and to provide for more
electronic information hardware and
software in the courtroom.
34
B.C. Court of Appeal
2010 Annual Report
JUDICIAL ACCESS POLICY WORKING COMMITTEE
Members:
Jennifer Jordan, Registrar (Chair)
Frank Kraemer, Q.C., Executive Director & Senior Counsel, Judicial Administration
Trish Shwart, Executive Director Business Transformation and Corporate Planning
Kashmiro Cheema, Acting Director, Court Reform
Jan Rossley, Director Judicial Administration, Provincial Court
Heidi McBride, Supreme Court Law Officer
Gene Jamieson, Legal Officer, Provincial Court
Kathryn Thomson, Legal Policy Consultant
Mandate of the Committee
The Committee is a joint committee
consisting of representatives from all three
courts and Court Services members. The
Committee develops draft policies and
interacts with the various court
committees, seeking guidance and
approval for draft policies relating to
access to court records, specifically those
in electronic format. The Chief Justices
and Chief Judge are consulted before a
policy is adopted. In addition to policy
work, the Committee also reviews access
applications for those seeking bulk access
to court record information.
Work of the Committee
In 2010, work of this Committee
continued to revolve around issues relating
to the Digital Audio Recording System
(DARS), discussions about access to
criminal
record
information,
and
preparation and review of court access
policies. The Committee also dealt with
requests to increase the list of documents
which were viewable through CSOnline.
The Supreme Court has approved a draft
Court Records Access Policy which should
be available in early 2011. Similarly, the
Provincial Court has approved Policies
Regarding Public and Media Access in the
Provincial Court of British Columbia and
this again should be available in early
2011. The Court of Appeal will consider
these policies before drafting a similar
policy for the Court of Appeal.
Access to Provincial Court criminal
information was provided free of charge in
2008 and 2009. In 2010 Court Services
attempted to impose user access fees.
However, this was short-lived and
complaints resulted in removing the fees.
Access to restricted files in Court Services
Online by counsel of record has been
implemented.
An issue which has been growing over the
last year is the use of mobile devices in the
courtroom. The presiding judge controls
the use of devices in the courtroom
(including the use of Twitter and
blogging). The Committee will be
assisting the judiciary in developing a
policy.
During the year, the Committee received,
considered, and granted a number of
applications from a variety of government
agencies and departments for access to
court records for the purpose of fulfilling
their statutory mandate.
35
B.C. Court of Appeal
2010 Annual Report
LAW CLERK COMMITTEE
Members:
The Honourable Madam Justice Kirkpatrick
The Honourable Mr. Justice Frankel (Chair)
The Honourable Mr. Justice Tysoe
The Honourable Madam Justice D. Smith
Gregory Pun, Law Officer
The Law Clerk Committee provides
general supervision over the Court of
Appeal’s law clerk program. The Law
Officer provides day-to-day supervision
for the law clerks. One of the major tasks
of the Committee is to interview the short
list of candidates, following the interviews
by the law officers of the Supreme Court
and Court of Appeal.
Law clerks in the Court of Appeal
commence their terms in the first week of
September each year and finish variously
after 10, 11, or 12 months (i.e. at the end
of June, July, or August).
In September 2010, 12 clerks began their
clerkships at the Court of Appeal for the
2010 – 2011 term. Of the clerks who
started in September 2010, there are five
from University of British Columbia, three
from University of Victoria, two from
Dalhousie University and one each from
Queen’s University and the University of
Manitoba.
In January 2010, the law officers of the
Court of Appeal and the Supreme Court
received 94 applications for the 30 law
clerk positions available in the two courts
for the 2010 – 2011 term. About 49 were
from students at either the University of
British Columbia or the University of
Victoria law schools, and the remainder
were from other Canadian and foreign law
schools.
In February 2010, the law officers
interviewed 82 of those applicants.
Subsequently, the judges of the Court of
Appeal Law Clerk Committee interviewed
22 candidates and selected 12 for the
positions in the Court of Appeal.
In August 2010, the Court hired an
additional law clerk for a 12-month term
beginning in September to assist the Court
with the Aboriginal rights and title appeals
from the order of Mr. Justice Vickers in
Tsilhqot’in Nation v. British Columbia,
2007 BCSC 1700.
In November 2010, Judge Kirkpatrick and
members of the Supreme Court Law Clerk
Committee, the law officers, and some
former and current clerks, attended
recruitment information sessions at both
the University of British Columbia and the
University of Victoria law schools.
The law officers and the members of the
Law Clerk Committee continue to refine
the recruitment and application process.
The Committee expresses its thanks to Jill
Leacock and Heidi McBride, Law Officers
for the Supreme Court, Greg Pun, Law
Officer for the Court of Appeal, and to
Susan Devenish and Krystal Mason, for
their assistance.
36
B.C. Court of Appeal
2010 Annual Report
LIBRARY COMMITTEE
Members:
The Honourable Madam Justice Kirkpatrick (Chair)
The Honourable Madam Justice Griffin*
The Honourable Madam Justice Humphries*
The Honourable Madam Justice Kloegman*
Frank Kraemer Q. C., Senior Counsel & Executive Director, Judicial Administration
Diane Lemieux, Librarian
(*B.C. Supreme Court)
In a time where many are relying less on
paper reporters and more on electronic
databases the Library decided, due to
space and budget constraints, to cancel all
of the law reporters purchased by
subscription or received in the way of
binding in Kamloops, Victoria and New
Westminster. Prior to making this
decision, the Committee received a
positive response from the judges and
masters in these locations indicating a
willingness to use online resources.
Vancouver, being the central source, will
continue to subscribe to the BCLR’s,
CBR’s, CCC’s, CPC’s, CR’s, DLR’s,
RFL’s, SCR’s, and WWR’s for the time
being. Duplicate binding of the CCC’s,
SCR’s and BCLR’s in Vancouver was also
discontinued.
during absences.
As always, the judicial members of the
Library Committee thank the library staff
for their dedication, hard work, and
cheerful responses to the request of judges,
masters, law clerks, and judicial
administrative assistants.
The conversion process for posting of
Court of Appeal and Supreme Court
judgments, which started in June 2009,
continues to be done by the library
technician, Sarah Preston, along with
Mary Falck, the website administrator,
who posts the judgments on to the courts’
website, sends them to the various
publishers, and notifies the lower court
judges of appealed decisions.
Diane
Lemieux and Susan Devenish continue to
act as back-ups for both Sarah and Mary
37
B.C. Court of Appeal
2010 Annual Report
PRO BONO COMMITTEE
Members:
The Honourable Chief Justice Finch (until June, 2010)
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Mackenzie (from October, 2010)
The Honourable Madam Justice Levine
The Honourable Madam Justice Neilson
Self-Represented Litigants
In 2010 the Committee became part of a
larger Court initiative involving selfrepresented litigants. The ratio of selfrepresented litigants to represented parties
has been growing over the years and the
Court’s efforts to provide materials and
assistance to these litigants has not kept
pace.
The initiative began with the Chambers
project of the Planning Committee. One of
the recommendations from the Chambers
Project was to provide a more varied type
of material to assist self-represented
litigants. Such materials could include
short videos on procedure as well as better
graphic materials, flow charts and smart
forms.
The Court does not have the resources to
undertake a project of this magnitude. The
Justice Education Society (JES) was
approached and Rick Craig, JES Executive
Director, and his staff have kindly offered
their assistance and experience to move
forward on this project. The first hurdle is
to obtain funding.
As part of the strategy, the material can be
developed in stages. In the same way that
the websites which JES has developed for
the other courts, the Court of Appeal
website could start with a few instructional
videos based on the material contained in
the current guidebooks (How to Conduct
an Appeal and Responding to an Appeal).
At a later date, the website could add more
booklets and develop some smart forms,
which would assist the applicant in filling
in the blanks of the Court forms.
The idea is to start with civil materials and
to plan to add criminal materials at a later
date (the ratio of criminal self-represented
litigants is smaller than that of civil
litigants).
At its October meeting the Court
enthusiastically approved the plan to move
forward in developing this website in
conjunction with the JES. This Committee
will form the consulting committee for this
project.
It is anticipated that the first phase of the
project will run through the end of 2011.
Access Pro Bono
Access Pro Bono was incorporated in
February 2010 to carry on the work of the
Western Canada Society to Access Justice
and Pro Bono Law of British Columbia,
which formally merged as of 1 April 2010.
The mission is to promote access to justice
in British Columbia by providing and
fostering quality pro bono legal services
for people and non-profit organizations of
limited means.
38
B.C. Court of Appeal
2010 Annual Report
Services
Access Pro Bono carries on the services
and programs formerly offered by the two
organizations including:
• over 89 summary legal advice
clinics in community centres,
social agencies, churches and
courthouses located throughout the
province;
• a province-wide roster program
providing representation services
to individuals and non-profit
organizations of limited means;
• a superior courts civil duty
counsel project in Vancouver; and
• a Children's Lawyer project in
Nanaimo.
Meera Bennett
Joseph McArthur
Warren Milman
Andrew Pilliar
Paige Morrow
Ben Ingram
Herman Van Ommen
James MacInnis
Donald McLeod
Court of Appeal Coordinators
The Court of Appeal coordinators who put
many volunteer hours into reviewing cases
for merit are:
Simon Coval (civil)
Georgialee Lang (family)
Rick Peck, Q.C. (criminal)
John Jordan (Vancouver Island)
Assistance 2010
In 2010, 9 low-income British Columbians
received full legal representation in the BC
Court of Appeal through Access Pro
Bono’s Court of Appeal Roster Program,
for which Access Pro Bono maintains a
roster of 194 lawyers. A further 13 lowincome British Columbians received legal
assistance on their Court of Appeal
matters from Access Pro Bono's Civil
Chambers Duty Counsel Program.
Finally,
25
low-income
British
Columbians received legal advice from
Access Pro Bono clinic lawyers on
whether or not to pursue their Court of
Appeal matter.
Volunteers for 2010
The Court of Appeal is extremely
appreciative of all the lawyers who devote
their time to pro bono cases. Names of
some of the lawyers who took on new pro
bono Court of Appeal cases in 2010:
39
B.C. Court of Appeal
2010 Annual Report
STATISTICS
40
B.C. Court of Appeal
2010 Annual Report
SUPREME COURT OF CANADA
There were 72 applications for leave to
appeal from decisions of the Court filed
with the Supreme Court of Canada in
2010.
The Supreme Court of Canada considered
66 applications for leave to appeal (some
of these were from 2009 filings). Of these
applications, 10 were granted, 46 were
dismissed, and there were seven decisions
pending at the end of 2010. The other
three include one extension of time
dismissed; one discontinued and one oral
hearing ordered.
In 2010, the Supreme Court of Canada
heard 13 appeals from B.C. cases. Of these
appeals, four appeals were allowed, two
were dismissed and there were seven
reserved judgments pending at the end of
2010. In addition to these decisions,
another 10 judgments were rendered in
B.C. cases which had been heard in
previous years. Of these, five appeals were
allowed and five appeals were dismissed.
In 2010, 15% of the applications for leave
to appeal to the Supreme Court of Canada
were from the Court. Of the judgments
rendered in 2010, 14% were appeals from
the Court.
41
B.C. Court of Appeal
2010 Annual Report
B.C. COURT OF APPEAL
The charts on this page show the volume
of litigation and compare the number of
appeals filed, both civil and criminal, and
the number of appeals disposed of for the
period 2005 - 2010.
Please refer to the appendices for the
actual numbers applicable to these charts.
Civil
Figure 1 demonstrates the general increase
in appeals filed from 2005 to 2009, with a
substantial drop in filings in 2007 and
2010. The disposed appeals dropped in
2006 and 2008, but otherwise have been
close or exceeded filings. The disposition
rate for appeals in 2010 was 100% of
filings (Appendix 1).
Figure 2
Criminal Appeals Filed and
Disposed 2005 - 2010
400
300
200
Appeals Filed
2010
2009
2008
2007
0
2006
Civil Appeals Filed and Disposed
2005 - 2010
2005
100
Figure 1
Appeals Disposed
Appeals Filed
2010
2009
2008
2007
2006
Global
2005
800
780
760
740
720
700
680
660
640
620
criminal appeals disposed of recently is
slightly more than the number of criminal
appeals filed, which assists in reducing the
backlog of criminal appeals which had
accumulated in the earlier years. For 2010,
there was a noticeable decrease in filings
while the number of criminal dispositions
remained stable, resulting in a disposition
rate of 121% of filings (Appendix 2).
Appeals Disposed
For a more complete picture of total
activity, Figure 3 combines the civil and
criminal filings and dispositions. The
clearing rate for appeals over the last two
years has been less than 100%, so this
year’s clearing rate of 106% has assisted
in clearing up the backlog of appeals
(Appendix 3).
Criminal
There are substantially fewer criminal
appeals filed as compared to civil appeals.
Figure 2 shows that the number of
42
B.C. Court of Appeal
2010 Annual Report
Figure 3
Types of Criminal Appeals Filed
2010
Appeals Disposed
In criminal matters, appeals from
convictions and acquittals take up most of
the hearing time of the Court, while
sentence appeals and summary conviction
appeals require less time. Figure 5 gives a
comparison of criminal appeals filed
between 2005 and 2010. Sentence and
summary conviction appeals amount to
about half (50%) of the total criminal
appeals filed (Appendix 2).
Figure 5
Criminal Appeal Filings
2005-2010
Types of Civil Appeals Filed
Figure 4
250
200
150
100
Sentence Appeals
2010
2009
2008
0
2007
50
2006
Of the civil appeals initiated in 2010, 23%
were by applications for leave to appeal.
These appeals require the permission of a
justice before they can be heard by a
division of three judges. In 2010, 64% of
the applications for leave to appeal were
granted. Figure 4 shows the comparison
of applications for leave to appeal with
appeals as of right (Appendix 1).
2005
Appeals Filed
2009
2008
2007
2006
1200
1000
800
600
400
200
0
2005
Total Appeals Filed and Disposed
2005-2010
Conviction Appeals
Civil Appeal Filings
2005-2010
Origin of Appeals
600
500
400
300
200
Appeal as of Right
Leave Granted
2010
2009
2008
2007
2006
0
2005
100
Leave to Appeal
Another way to categorize the civil work
of the Court is to look at the type of
proceeding that gave rise to the appeal.
The majority of appeals arise from
chambers matters and summary trials
under Rule 18A (now Rule 9-7). The 2010
figures show there were substantially more
appeals from chambers matters and Rule
18A summary trials than appeals from
trials. Figure 6 shows the types of appeals
according to the underlying proceeding.
Over 67% of appeals filed were from nontrials.
43
B.C. Court of Appeal
2010 Annual Report
by the Court. Drug and assault offences
form the largest categories of criminal
appeals this year, amounting to almost
40% of the cases before the Court. “Other”
covers various offences such as arson,
mischief, and habeas corpus cases.
Figure 8 shows the top eight categories.
Figure 6
Origin of Appeals 2010
Figure 8
Boards
Trials
18A
Criminal Categories Appeals 2010
Chambers
350
300
250
200
150
100
50
0
70
60
50
40
Civil Case Categories
30
In addition to the origin of civil appeals,
there are seven broad categories of civil
appeals. Figure 7 gives a flavour of the
variety of cases which are heard by the
Court of Appeal.
20
160
Assault
Extradition
Motor Vehicle
Murder
Other
Property
Appeals Allowed/Dismissed
140
120
100
80
60
40
Motor Vehicle
Torts
Real Property
Constit/Admin
Family
Procedure
Commercial
20
0
Sexual Offences
Civil Case Categories 2010
0
Drug Offences
Figure 7
10
The rate of civil and criminal appeals
allowed over the past six years has varied.
In 2010 the proportion of civil appeals
allowed was 45% of the total civil appeals
heard. For criminal appeals, the figure was
28% allowed of all criminal appeals heard.
The “allowed” statistics encompass partial
appeals allowed (i.e. any variations in the
order) as well as appeals where new trials
were ordered.
Criminal Case Categories
Another interesting breakdown is for the
types of criminal cases that are dealt with
44
B.C. Court of Appeal
2010 Annual Report
Figure 9 shows the number of civil appeals
allowed and dismissed and Figure 10
shows the number of criminal appeals
allowed and dismissed. (Appendices 1 &
2)
civil filings for self-represented litigants
was 28% and the percentage of criminal
self-represented litigants amounted to 13%
of all the appeals filed.
200
Figure 12 represents the number of selfrepresented litigants, by category,
compared to the represented litigants in
that category. It is interesting to note that
almost 50% of family law appeals involve
at least one self-represented litigant.
150
Figure 11
Figure 9
Civil Appeals
Allowed/Dismissed 2005 - 2010
Figure 10
Criminal Appeals
Allowed/Dismissed 2005 - 2010
140
Self-Represented
120
Total
Dismissed
900
800
700
600
500
400
300
200
100
0
Civil
Allowed
2010
2009
2008
2007
2006
0
2005
50
Criminal
Appeals Filed - Self-Represented
Litigants 2010
100
Represented
Figure 12
100
80
Self-Represented Litigants by
Category of Appeal 2010
60
40
20
Allowed
2010
2009
2008
2007
2006
600
2005
0
Dismissed
500
400
300
Self-Represented Litigants
200
100
Self Represented Litigants
Criminal
Civil
0
Family
Figure 11 shows the number of selfrepresented litigants compared to the
number of represented litigants who filed
appeals in 2010. This number does not
capture those litigants who file their own
appeal but subsequently retain counsel;
nor does it show the change where counsel
cease to act. In 2010 the percentage of
Total Litigants
45
B.C. Court of Appeal
2010 Annual Report
Appendix 1
Civil Statistics 1999-2010*
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
APPEALS FILED:
Notice of Appeal
787
679
660
582
532
468
550
494
498
530
538
519
Leave to Appeal
224
248
258
236
204
171
154
170
144
172
175
131
54
69
76
55
59
65
55
Notice of Appeal and Leave
1011 927
918
818
736
693
773
740
697
761
778
705
Appeals Allowed
151
133
137
121
112
137
108
117
100
135
130
Appeals Allowed %
43% 42% 43% 42% 38% 40% 46% 38% 42% 42% 43% 45%
Appeals Dismissed
196
Appeals Dismissed %
57% 58% 57% 58% 62% 60% 54% 62% 58% 58% 57% 55%
TOTAL COURT
DISPOSITIONS
347
345
310
326
320
280
297
282
281
238
315
289
Appeals Concluded in
Chambers or Abandoned
673
544
522
492
455
498
492
419
455
449
441
419
TOTAL DISPOSITIONS
1020 889
832
818
775
778
789
701
736
687
756
708
Dispositions as % of Filings
101% 96% 91% 100% 105% 112% 102% 95% 106% 90% 97% 100%
TOTAL FILED
COURT DISPOSITIONS:
148
197
177
189
199
168
160
174
164
138
180
159
Judgments Reserved (Court)
174
197
178
193
181
210
197
221
197
192
245
233
Judgments Reserved (Cham)
n/a
n/a
n/a
n/a
n/a
99
66
79
88
87
63
62
Appeals with 5 Judges
3
12
16
10
16
4
1
1
3
2
7
1
Court Motions: Reviews
16
10
7
17
13
15
13
19
13
14
20
25
Granted
0
3
6
2
7
3
5
5
2
2
4
3
Refused
16
7
1
15
6
12
8
14
11
12
16
22
Chambers Motions
568
530
419
427
451
494
435
426
423
423
539
503
LEAVE TO APPEAL
Granted
18
80
75
65
56
60
62
66
58
66
65
47
Refused
39
37
35
26
30
56
42
38
42
47
51
30
Total
57
117
110
91
86
116
104
104
100
113
116
77
*The numbers for 2004-2010 have been revised
46
B.C. Court of Appeal
2010 Annual Report
Appendix 2
Criminal Statistics 1999-2010*
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
APPEALS FILED:
Sentence
199
182
156
133
126
162
176
157
149
163
140
114
Conviction
203
174
177
128
130
137
142
147
116
123
115
99
Summary Conviction
39
40
37
47
33
41
18
15
17
23
12
16
Acquittal & Other
68
78
69
64
57
69
60
50
61
50
44
28
TOTAL FILED
509
474
439
372
346
409
396
369
343
359
311
257
Appeals Allowed
103
84
111
70
72
82
66
76
77
82
69
52
Appeals Allowed %
29% 28% 37% 31% 27% 40% 33% 37% 35% 41% 41% 28%
Appeals Dismissed
248
Appeals Dismissed %
71% 72% 63% 69% 73% 60% 67% 63% 65% 59% 59% 72%
TOTAL
351
302
304
229
265
206
198
208
217
202
169
189
Summary Dismissals
Abandonments in
Court/Chambers
118
149
139
137
105
140
161
149
160
139
149
121
TOTAL DISPOSITIONS
469
451
443
366
370
346
359
357
377
341
318
310
COURT DISPOSITIONS:
Appeals Disposed % of
Filings
Appeals Heard by 5 Judges
Judgments Reserved
Judgments Reserved
Chambers
Chambers Motions
218
193
159
193
124
132
132
140
120
100
137
92% 95% 101% 98% 107% 85% 91% 97% 110% 95% 102% 121%
4
5
5
0
1
0
1
0
0
2
0
1
78
89
89
86
109
84
85
85
81
76
88
88
n/a
n/a
n/a
n/a
n/a
21
10
10
28
11
11
13
305
218
260
230
219
244
275
298
248
242
265
272
* The numbers from 2004-2010 have been revised
47
B.C. Court of Appeal
2010 Annual Report
Appendix 3
Total Appeals Filed and Disposed 1999-2010**
1999 2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
APPEALS FILED:
1520 1401
1357
1190
1082
1102
1169
1109
1040
1120
1089
962
COURT DISPOSITIONS:
698
647
614
555
585
486
495
490
498
440
484
478
Appeals Allowed
254
232
244
207
179
194
203
184
194
182
204
182
Appeals Allowed %
36%
36%
40%
37%
32%
40%
41%
38%
39%
41%
42%
38%
Appeals Dismissed
444
415
370
348
383
292
292
306
304
258
280
296
Appeals Dismissed %
64%
64%
60%
63%
68%
60%
59%
62%
61%
59%
58%
62%
TOTAL
698
647
614
555
562
486
495
490
498
440
484
478
Appeals Concluded in
Chambers or Abandoned
791
693
661
629
560
638
653
568
615
588
590
540
TOTAL DISPOSITIONS
1489 1340
1275
1184
1145
1124
1148
1058
1113
1028
1074
1018
Dispositions as % of Filings
98%
96%
94%
99%
106% 102%
98%
95%
107%
92%
99%
106%
Judgments Reserved
252
286
267
279
290
414*
358*
395*
394*
366*
407*
396*
7
17
21
10
17
4
2
2
3
4
7
2
873
748
679
657
670
738
710
724
671
665
804
775
Appeals with 5 Judges
Chambers Motions
*Now includes chambers reserved judgments
**The numbers from 2004-2010 have been revised
48
B.C. Court of Appeal
2010 Annual Report